I have an employee that I was thinking about letting go or suspending about 2 weeks ago, and on that day he calls into the office and tells another employee he has a doctors appointment. So then he comes in about six hours later and says his back is hurting him and he has a chiropractors excuse to be off for fifteen days of any work. (We have written up many discrepencies on this employee in the last couple weeks, and he was very disgruntled.)

My employee stood in my office for 45 minutes after he got back from the chiropractor and never showed any back pain. A chair was foot away from him and he never asked to sit down. He also said he didn't know how he hurt his back, maybe he bent over or rolled over in his sleep. Then he said his back was hurting him off and on for about four months.

After he left work I get a call from the chiropractors office asking for a workers comp. claim number and that was the first time that I learned he was filing for workers compensation.

I've written this employee up many times before he went to the doctors because he was making many mistakes and wasn't following directions.

I feel he has been taking advantage of the time clock on the road, he is a driver. Everybody in our office calls him 4:59, because that is time he always gets back. I'm mean everyday, it is rare when he does get back earlier.

I thought he wasn't coming back to work, but yesterday he comes in looking for his check. And he says my back is getting better and I'll be back soon. This guy has totally blown off our company with no care and no phone calls for about 10 days or more.

So my questions are what are my rights?

If I let go of this guy it could look like I'm getting rid of him for other reasons, when it is really just about job performance. I'm hiring another driver now and I don't want him driving my truck because I don't trust him anymore. I have a temporary fill in driver right now and he has been getting back about 2:00 everyday. Can I change my workers comp. driver to another position and cut his time in half because I don't really have room for him anymore. I figure I can maybe give him 20 hours week. Also, can I change his hourly wage because I don't want to give him the same amout of money for the position I want to put him in, I'm not a cash rich company.

Have you documented his performance prior to this back problem? If so, you can feel more comfortable in moving ahead with discipline. If he files a complaint of retaliation, then you can show that he did receiving counseling regarding his performance. There will be a direct link between performance counseling, his poor performance and your subsequent actions.

However, if there is no documentation as he has not been counseled in writing, then you must be extremely careful. Regardless of nicknames, etc., you will be presumed to be guilty of discrimination or retaliation against him by taking action right now.

My suggestion is that you establish very definite performance standards for all employees, including those in his classification. Then, if he is unable to meet those standards, you need to counsel him in writing. Only after that process is completed will it be safer for you to proceed.

On the injured back scenario, if an employee comes to you with a doctor's note, specifying that they must perform light duty, you can determine what tasks may be required, so long as they meet the physical requirements. Employers interested in encouraging employees to return to work will give light duty assignments that are not of great interest to the employee. For example, it is possible for an employer to require an employee on light duty to sit at a desk, with nothing to do but answer the telephone and require that he/she cannot read, visit, etc., to pass the time. If this is the practice for anyone on light duty, not just those filing a workers compensation claim, you can bet that most people will want to go back to their more interesting job. I know of a janitorial firm that gives light duty persons tasks such as cleaning the edges of the toilets, cleaning the wheels of company trucks, etc....things that are not necessarily attractive. If this isn't in retaliation but it can be shown that it is the light duty that is available, once again, people will want to go back to work.

I know of another employer who had an employee who brought in a note saying that she could not work Saturdays and Sundays due to her medical condition. (She wanted the weekends off.) So, the employer scheduled her to work in the evenings, when the shift with weekends off was available. This person did not want to work evenings but she didn't have a choice. She promptly got her doctor to change her restriction so that she couldn't work evenings either. At that point, the employer was able to show that no job meeting her specification was available and she would need to go out on leave. She then got her doctor to remove all restrictions.

The message in all of this...it is important for employers to manage the workplace. They should counsel performance issues and take a proactive stance in ensuring that their employees are happy and productive.

Let me know if you have any other questions.

I just received a doctors note saying his injury started in the month of April, and just as of 9/25 his main pain started. (The same day I wrote him up 9/25.)

Don't I have any right as an employer? Can I fire him for not letting me know? Can I suspend him for not letting me know he had back problems when he gets back from his workers comp. vacation?

My main question is can I give him another job title with less hours, since I don't have lots of work for him now.

He is a lawsuit waiting to happen and I don't want him on my driving my
truck.

Thank you for your help so far.

You can fight the workers compensation claim by providing all of the information to your insurer. You may need to pursue the insurer on this but it is important to fight fraudulent workers compensation.

However, I would strongly advise against changing his job, pay or terminating him at this point. He will undoubtedly file a charge against you and, because of the circumstances you have described, he may win.

My advice is that you work with a corporate employment attorney who can advise you of what you need to do to ensure that he either becomes productive and trouble free or he leaves your company with minimal disruption. While the attorney fees can cost you some money, he/she will save you much more in future defense costs and increased workers compensation fees.

This kind of employee can cause a lot of trouble for your company and for the others in your company. I have seen this kind of situation before. He is acting very selfishly....he may not realize that fraudulent claims and placing the employer on the defensive causes a more difficult environment for all of the other employees. As you can tell, I am not sympathetic towards people who abuse the system. As I said, it is a very selfish attitude. Good luck and let me know if you have any other questions.